The Federal
Deposit Insurance Corporation, Washington, D.C., (Employer or FDIC), filed a
request for assistance with the Federal Service Impasses Panel (Panel) to
consider a negotiation impasse under the Federal Service Labor-Management
Relations Statute, 5 U.S.C. § 7119, between it and the National Treasury
Employees Union (Union).

Following an
investigation of the request for assistance, arising from bargaining over the
Employer’s proposed smoking policy, the Panel directed the parties to
participate in an informal conference with a Panel representative to resolve the
dispute. If no settlement was reached, the representative would report to the
Panel on the status of the dispute, including the parties’ final offers and
her recommendations for resolving the matter. After considering this
information, the Panel would take whatever action it deemed appropriate to
resolve the impasse, including the issuance of a binding decision.

Accordingly,
Panel Representative (Staff Attorney) Sara L. Walsh conducted an informal
conference with the parties on February 11, 1999, that included a tour of three
locations in the Washington, D.C., area. Although they explored possibilities
for settlement, the parties were unable to resolve the dispute. Ms. Walsh
reported to the Panel, and it has now considered the entire record, including
written statements which were submitted following the informal conference.

BACKGROUND

The Employer is a Government
corporation whose mission is to examine banks for safety and soundness and
insure individual deposits. The Union represents approximately 4,800
bargaining-unit employees. They work at Headquarters, in the Field Liquidation
Unit, and in the Divisions of Supervision and Compliance and Consumer Affairs.
Employees occupy positions such as attorney, economist, data processing clerk,
credit specialist, computer technician, secretary, administrator, accountant,
and in crafts and trades, financial management, asset marketing, and other
support positions.(1)
Although the Union comprises 11 chapters, 8 of which are in a
consolidated unit, the various collective-bargaining agreements between the
parties have either been renegotiated recently or are currently being
renegotiated.

ISSUES AT IMPASSE

The parties essentially disagree over whether: (1)
indoor smoking should be continued at the Employer-owned Seidman Center Hotel
(Center and hotel); and (2) additional outdoor smoking areas should be
designated at FDIC’s three facilities in the Washington, D.C., area.

POSITIONS OF THE PARTIES

1. The Union’s
Position

In addition to the locations already agreed upon by
the parties, the Union proposes the following:

Fundamentally, the Employer has not demonstrated a
need to change the status quo. Its policy is an "unjustified and
overreaching attempt to restrict smoking by employees," reflecting a
greater concern for aesthetics than employee health. In contrast, the Union’s
proposal "strike[s] a reasonable balance between the rights of employees
who are smokers and the rights of employees and visitors to be protected from
second-hand smoke" by following "the directions set forth in Executive
Order [E.O.] 13058."(3) In general, the current outdoor smoking areas are open
and away from doorways and air intake ducts, so that they neither impede traffic
flow nor permit smoke to infiltrate offices. As a result, there is minimal
second-hand smoke exposure or impact on productivity.

With regard to the hotel rooms at Virginia Square,
the proposal would maintain the status quo permitting indoor smoking in
the rooms on the 10th floor. The circumstances in this case warrant
deviating from the indoor smoking ban imposed in previous Panel cases because
hotel rooms are "residential accommodations." As such, they constitute
an exception to the standards of E.O. 13058 that "explicitly recognizes the
significant difference between office space and residence space by specifically
excluding the latter from the general ban on indoor smoking."(4) In addition,
designating rooms for smoking is a common commercial hotel industry practice and
FDIC, as a hotel operator, should apply these same standards and practices.
Although there is only one central ventilation system in the hotel building,
each restroom has additional venting to large rooftop exhaust fans. Under its
proposal, additional smoke reduction systems would be installed to mitigate the
affects of second-hand smoke. The hotel’s roof terrace is suitable for smoking
because it is not an area of general ingress and egress, and is partially
covered to protect employees from the elements. Regarding the front entrance of
the office complex, the proposal "strikes a reasonable and appropriate
accommodation between smokers and non-smokers" by eliminating smoking
within 25 feet of the doorway and air vents, pursuant to E.O. 13058
requirements. This location is closer to the workplace than the front courtyard
location already agreed to by the parties. The proposed wording would also ban
smoking within 10 feet of the cafeteria patio doorway, in compliance with E.O.
13058.

As to the 7th floor balcony at the 17th
Street location in Washington, D.C., numerous factors make the designation of
two tables for smokers reasonable. They include the absence of air intake
systems on the balcony, the limited and reasonable number of tables for smoking
(only two), and the weather- and seasonal-related use by non-smokers, all of
which minimize employees’ exposure to second-hand smoke. At the F Street
Washington, D.C., location, the parties share a common concern regarding the
child care facility. The proposal reasonably restricts smoking to the far side
of the entrance, away from the day care center and children entering and exiting
the building. It is preferable to the smoking shelter at the rear of the
facility proposed by the Employer because of its closer proximity to the
workplace.

(1) Virginia Square: Three designated
smoking areas located: (a) in front of the hotel; (b) in the outside
courtyard; and (c) under the overhang at the back entrance.(5) (2) 550 17th
Street: One designated outdoor smoking area on the ground floor.(6) (3) 1776
F Street: No smoking in the front of the building and a designated
smoking shelter in the back.(7)

The Employer’s proposal would prohibit all indoor
smoking and designate only certain outdoor smoking areas and shelters to
safeguard the "health and well-being" of all employees. These measures
would provide a smoke-free workplace consistent with E.O. 13058, previous Panel
decisions, the policies of other Government agencies, and private sector
employers.(8) In addition to prohibiting smoking in all "interior space owned,
rented, or leased by the executive branch of the Federal Government," E.O.
13058 also provides agencies the discretion necessary to establish more
restrictive smoking policies. The proposal reflects FDIC’s intent to use this
judgment in implementing "the widest possible restriction of smoking at its
facilities." Concerning the proposed designated outdoor smoking areas, they
are accessible to the workplace without allowing smoke to enter the air intake
system or creating other safety hazards. No other areas are necessary to
accommodate employees who smoke.

Regarding the 10th floor hotel rooms at
Virginia Square, the Center is not open to the public, and FDIC seeks a more
protective smoking policy than required by the E.O., which provides an exception
to prohibiting indoor smoking for "residential accommodations." As its
letter from the Health and Safety Program Manager at FDIC, certified in
industrial hygiene, states: "[T]here is one common ventilation system
serving all rooms of the Seidman Center Hotel facility. Second-hand smoke from
smoking rooms, therefore, migrates to all other areas of the hotel." The
Union’s proposal would continue, rather than eliminate, the risk of
second-hand smoke exposure to employees. Prohibiting smoking on the hotel’s
roof terrace would prevent smoke from entering the building and its ventilation
system. A smoking ban at the front entrance of the office complex also prevents
exposing employees, visitors, and guests to second-hand smoke as they enter and
exit the building. In addition, the cafeteria patio is a popular location for
outdoor eating, and employees should not be exposed to second-hand smoke during
meals.

At the 17th Street location, the 7th
floor balcony is designed for employees’ use and enjoyment of their meals
outdoors and is, therefore, inappropriate as a designated smoking area.
Concerning the F Street location, the proposed no smoking area will protect the
children attending day care at this location from the dangers of second-hand
smoke, to which they are particularly vulnerable. Given the narrowness of the
sidewalk outside this facility, the proposed outdoor smoking shelter is the only
viable alternative to protect employees from the elements while being reasonably
accessible to the office.

CONCLUSIONS

Upon careful review of the evidence and arguments
presented, we conclude that the dispute should be resolved through the adoption
of a compromise solution that continues to permit indoor smoking on the 10th
floor of the Seidman Center Hotel, and designates as smoking areas all but one
of the outdoor locations proposed by the Union. Turning to the key issue in this
dispute, we are persuaded that the residential function of the Seidman Center
Hotel presents a special circumstance distinguishing this case from others where
the Panel has prohibited indoor smoking. In this regard, designating 1 of the 11
floors for smoking is consistent with practices at commercial, privately-owned
hotels. While the Seidman Center Hotel has a single air handling system, the
parties confirm that room windows can be opened and that bathrooms are vented
separately to a roof top fan. The Union’s proposal also requires the
installation of in-room air filters which should further dissipate the smoke. We
simply do not find, on the basis of the record before us, that the Employer’s
stated health concerns warrant the level of intrusion in employees’ off-duty
hours created by its proposal. The fact that E.O. 13058 exempts this type of
"residential accommodation" from the general indoor smoking ban
appears to support this conclusion.

As to outdoor smoking areas, with one exception, the
need for changing the status quo has not been demonstrated. In general,
the existing areas are in close proximity to the workplace and located in open
space removed from air intake ducts and doorways. They also provide smokers some
protection from the elements. Further, smoke appears to dissipate quickly, and
foot traffic is unimpeded. Concerning the facility at 1776 F Street, however, we
are convinced that eliminating the risks of second-hand smoke to the children
attending the day care facility requires the additional precaution of
prohibiting outdoor smoking around the front entrance. As a result, we shall
order the adoption of the Employer’s proposal addressing that location.
Although less convenient than the current location, the proposed area is still
accessible to the work site, and the shelter provides employees with a measure
of protection from the elements. Finally, our decision in this case should not
be interpreted as an endorsement of smoking. The parties